Judge Orders Confiscation Of Papers in Terrorism Case

By BENJAMIN WEISER

Published: November 29, 2000

Citing ''significant security concerns,'' a federal judge in Manhattan has authorized government agents to enter the cells of five inmates awaiting trial in a terrorism case and remove documents and other materials that prosecutors say are inflammatory and could incite violence by the prisoners.

The materials were originally seized by investigators in the terrorism case and copies were later given to the defendants, through their lawyers, under a pretrial process known as discovery.

But the federal prosecutors recently asked the judge, Leonard B. Sand of Federal District Court in Manhattan, to have the materials removed from the defendants' cells after the recent stabbing of a guard in the federal jail in Lower Manhattan where all five defendants had been held. Two defendants, Mamdouh Mahmud Salim and Khalfan Khamis Mohamed, have been accused, though not charged, in the attack. They have since been transferred to other jails.

Among the materials were copies of two interviews given by Osama bin Laden to a satellite channel based in Qatar. It was not clear whether the prisoners had videotapes or transcripts.

In one interview, conducted on June 10, 1999, Mr. bin Laden, believed to be living under the protection of the Taliban in Afghanistan, renewed his call for a holy war against the United States. The other interview was broadcast in September of this year, the judge's order says.

All five defendants have been charged with participating in a global terrorism conspiracy organized by Mr. bin Laden. Prosecutors say the conspiracy included bombings at two United States embassies in East Africa in August 1998, which killed more than 200 people and injured thousands.

Judge Sand's ruling, which was made public yesterday, lists six other items, including documents in Arabic and English related to bombing and military training, and a copy of a fatwa, or Islamic religious opinion.

The ruling does not say whether the fatwa was issued by Mr. bin Laden, but prosecutors have said Mr. bin Laden has issued such opinions, calling for attacks on Americans.

In allowing the government to remove the materials, Judge Sand cited the stabbing of the guard, Louis Pepe, in the Metropolitan Correctional Center on Nov. 1, and said he was acting to ''prevent any unnecessary risk of violence.'' The attack left Mr. Pepe in critical condition.

Judge Sand said he acted after prosecutors said they wanted to restrict the defendants' access ''to discovery materials that are particularly inflammatory or which could be used to plan violence or an escape from custody.''

The judge indicated that the defendants are being permitted to keep other discovery materials. He also ordered that the materials that are removed should be turned over to defense lawyers, who ''shall remain free to discuss the content of any such materials with their clients.''

''The sole purpose of this order,'' the judge wrote, ''is to remove copies of such materials from prison facilities'' but not to prevent defense lawyers from discussing the materials with their clients.

Much of the discovery material cited by the judge was originally seized by the government in searches in the United States and overseas during the terrorism investigation.

Marvin Smilon, a spokesman for Mary Jo White, the United States attorney for the Southern District of New York, said yesterday that Ms. White's office would have no comment.

Sam A. Schmidt and Joshua L. Dratel, lawyers for one of the defendants, Wadih El-Hage, who was not accused in the attack on the guard, said about the removal of the materials: ''The government has these concerns. We disagree with those concerns.''

But, they added, the government's request went uncontested because ''it is unimportant and there are far more important things that we really do have to address before trial.''

Because the legal papers filed by the government and the transcript of the hearing at which the issue arose remain secret, it was not clear what was said before the judge.

In his ruling, the judge said that the agents who remove the materials may not be part of the team prosecuting or investigating the case, apparently to ensure that the prosecution does not see any notes made on the materials by the defendants. Four of the defendants are scheduled for trial on Jan. 3. A fifth is to be tried later.